in Re Tammy Fountain

Opinion issued May 2, 2011.

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO. 01-11-00198-CV

———————————

IN RE Tammy Fountain , Relator

Original Proceeding on Petition for Writ of Mandamus

MEMORANDUM OPINION

ON REHEARING

Relator

Tammy Fountain has filed a motion for en banc reconsideration of our March 25,

2011 memorandum order denying her petition for writ of mandamus without opinion. See Tex. R. App. P. 52.8(d), 52.9. Having received a response from real party in

interest Kathy Katcher, we withdraw our prior order and issue this opinion in

its stead, rendering the motion for en banc reconsideration moot. See

Brookshire Bros., Inc. v. Smith , 176 S.W.3d 30, 33 (Tex. App.—Houston [1st

Dist.] 2004, pet. denied). By her petition,

Fountain seeks a determination that Katcher lacks standing to seek appointment

as a managing conservator of Fountain’s child.

Our disposition remains the same.

On this record, we conclude that Fountain is not entitled to mandamus

relief from the trial court’s conclusion that Katcher has standing to file her

petition.

Background

As required under the applicable standard of review, we

accept as true the jurisdictional fact allegations of the real party in

interest for purposes of our standing analysis in this original proceeding. [1] Our recitation of the factual allegations is

not intended to suggest anything about what the appropriate fact-finder should determine

for purposes of future proceedings in this matter.

One year ago, Tammy Fountain and Kathy Katcher ended a

relationship that lasted approximately seven years. Beginning in April 2008, before their separation,

the two women began caring for an infant boy at the request of his biological

father. According to the father’s

affidavit testimony, he initially agreed to share possession of and

responsibility for the child with Katcher and Fountain. The arrangement was that the child, S.J.F., would

spend the first half of the week with the biological father and his family, and

he would spend the second half of the week at Katcher’s house with her and

Fountain. This arrangement continued for

some time, but the father eventually became “comfortable with the idea” that

Katcher would legally adopt S.J.F.

In October 2009, a change in circumstance prompted the two

women to seek adoption of the child. S.J.F.’s

biological mother gave birth to another child, and drugs were found in the

newborn’s system. Child Protective

Services intervened. Fearing that S.J.F.

would be placed in foster care, Fountain and Katcher sought an adoption. According to Katcher, Fountain proposed that an

adoption could be finalized more expeditiously if she were named the sole

adoptive parent. Katcher contends that the

two women agreed to add Katcher as a second adoptive parent at a later date. [2] Katcher paid some or all of the attorney’s

fees incurred during the adoption proceedings.

When the adoption became final in December 2009, Fountain was the only

adoptive parent listed on the certificate of adoption.

Both women claim to have been the child’s primary

caretaker. During their relationship,

Fountain and Katcher maintained separate residences located approximately three

and one half miles apart. Though living

separately, they often spent evenings and nights together with S.J.F. at the

home of one or the other. Katcher testified

that because she worked from home, she assumed primary responsibility for S.J.F.’s

care for a substantial amount of the time she and Fountain were together. Specifically, she stated that S.J.F. was in

her care 95 percent of the time and that she paid most of his

expenses. Katcher bought food, clothing,

toys, and medicine for S.J.F., all of which were kept at her house. She made improvements to her home to make it

safe for the child, and she had a place for him to sleep there. In preparation for the adoption home study, Katcher

also paid for improvements to Fountain’s home.

Katcher asserts that without such improvements Fountain’s home would not

have been suitable for a child. [3]

Katcher claims that she acted as a parent to S.J.F. by

locating, investigating, and selecting his daycare provider. She also attended medical appointments with him. Katcher testified that the time she spent

with S.J.F. increased in the months following the adoption due to Fountain’s

heavy workload. A friend and

professional colleague of Katcher testified by affidavit that Katcher “cared

for the child several days a week through 2008, the entire year of 2009 and in

2010 on an almost daily basis.” A

neighbor of Fountain who sometimes performs work on Katcher’s home testified

that between September 2009 and April 2010, he observed Katcher

caring for S.J.F. five or six days per week.

According to Katcher, all of this evidence demonstrates that she

developed a significant relationship with S.J.F. between April 2008 and April

2010.

The nature of the women’s former relationship is disputed. Katcher asserts that the women enjoyed a

committed relationship, pointing to Fountain’s own testimony that the two women

spent most evenings and nights together.

Katcher also presented evidence that, for a period of time before S.J.F.’s

adoption, she was listed as a domestic partner on Fountain’s health insurance

policy. The two women had considered

adopting other children together in the past.

After the adoption of this child, Fountain wrote to her attorney to

inquire about the process of adding Katcher as an adoptive parent. [4] The child’s biological father testified that

the two women were in a committed relationship and that he intended that they

would both become S.J.F.’s parents.

The couple’s permanent separation in April 2010 gave rise to

the underlying suit. Katcher filed suit

on May 21, 2010, alleging that Fountain began denying access to S.J.F. almost

immediately after their break-up. Katcher’s

pleadings do not raise any issue relating to the result of the adoption

proceedings, nor does she contend Fountain is an unfit parent. Instead, Katcher asserts her own claim of rights

with respect to S.J.F., and she asks to be named sole managing conservator of

the child. See Tex. Fam. Code Ann. §

153.371 (West 2008). Alternatively,

she seeks to establish a joint managing conservatorship with Fountain. See id .

§ 153.372 (West 2008).

Fountain responded by filing a motion to dismiss, challenging

Katcher’s standing to initiate an original suit affecting the parent-child

relationship. An associate judge denied

Fountain’s jurisdictional challenge by written order on October 8, 2010. The order provides in pertinent part:

5. The

Court finds that KATHY KATCHER has

developed a significant relationship with the child;

6. The

Court finds that KATHY KATCHER has

invested significant time raising and caring for the child;

7. The

Court finds that KATHY KATCHER and TAMMY FOUNTAIN have both had the care,

control and possession of the child for a period of 6 months not ending 90 days

prior to the filing of KATHY KATCHER’S Original

Suit Affecting Parent Child Relationship; and

8. The

Court finds that it is in the child’s best interest for KATHY KATCHER to be able to proceed with her Original Suit

Affecting Parent Child Relationship.

Fountain

appealed the associate judge’s ruling to the trial court. After a de novo hearing, including four days

of testimony and argument, the trial court orally adopted the associate judge’s

ruling on December 28, 2010. It is this

ruling that Fountain challenges in her petition for mandamus. [5]

Analysis

I. Standard

of review

Mandamus

relief is available if the relator establishes a clear abuse of discretion for

which there is no adequate remedy at law.

In re AutoNation, Inc. , 228

S.W.3d 663, 667 (Tex. 2007) (orig. proceeding).

A trial court has no discretion in determining what the law is or

applying the law to the facts. Walker v. Packer , 827 S.W.2d 833, 840

(Tex. 1992) (orig. proceeding). If the

trial court fails to analyze or apply the law correctly, the trial court abuses

its discretion. Id. With respect to the

resolution of factual issues, however, the reviewing court may not substitute

its judgment for that of the trial court.

Id. at 839 . The relator must establish that the trial

court could have reasonably reached only one conclusion. Id. at

840 .

II. Standing

Standing, which is implicit

in the concept of subject-matter jurisdiction, is a threshold issue in a child

custody proceeding. See In re SSJ-J , 153 S.W.3d 132, 134 (Tex. App.—San Antonio 2004,

no pet.); see also Tex Ass’n of Bus. v.

Tex. Air Control Bd. , 852 S.W.2d 440 , 443 - 44 (Tex. 1993).

Whether a party

has standing to pursue a cause of action is a question of law. See SSJ-J , 153 S.W.3d at 134 . In our

de novo review of the trial court’s determination of standing, we must take as

true all evidence favorable to the challenged party and indulge every

reasonable inference and resolve any doubts in the challenged party’s favor. See Tex.

Dep’t of Parks & Wildlife v. Miranda , 133 S.W.3d 217, 228 (Tex. 2004); Hobbs v. Van Stavern , 249 S.W.3d 1, 3

(Tex. App.—Houston [1st Dist.] 2006, pet. denied); Smith v. Hawkins , No.

01-09-00060-CV, 2010 WL 3718546 , at *3 (Tex. App.—Houston [1st Dist.] Sept. 23,

2010, no pet. h.) (memo. op.).

When standing to bring a particular

type of lawsuit has been conferred by statute, we use that statutory framework

to analyze whether the petition has been filed by a proper party. See Hunt

v. Bass , 664 S.W.2d 323, 324 (Tex. 1984); Atty. Gen. of Tex. v. Crawford , 322 S.W.3d 858, 862 (Tex. App.—Houston

[1st Dist.] 2010, pet. filed). In an

original suit affecting the parent-child relationship, the Texas Family Code

governs the standing question.

Section 102.003(a)(9) grants standing to “a person, other than a

foster parent, who has had actual care, control, and possession of the child

for at least six months ending not more than 90 days preceding the date of the

filing of the petition .” Tex. Fam. Code Ann . § 102.003(a)(9)

(West 2008). A determination of standing

under section 102.003(a)(9) is necessarily fact specific and determined on

a case-by-case basis. See In

re M.P.B. , 257 S.W.3d 804 , 808 - 09 (Tex. App.—Dallas 2008, no

pet.). In computing the time necessary

for statutory standing, “the court may not require that the time be continuous

and uninterrupted but shall consider the child’s principal residence during the

relevant time preceding the date of commencement of the suit.” Tex.

Fam. Code Ann . § 102.003(b) (West 2008).

Fountain

is S.J.F.’s only legal parent. She thus

contends that Katcher, as a non-parent, lacks standing under section 102.003(a)(9) to seek appointment as sole managing

conservator of S.J.F. absent any evidence that the legal parent abdicated her

parental responsibility to care for the child, and in the absence of any legal

document evidencing the parties’ intention to share parenting responsibilities. Fountain’s argument relies upon cases

suggesting that for purposes of the standing determination, a parent and a

non-parent cannot both exercise actual care, control, and possession of a child

at the same time without the consent of a parent. [6] That notion, however, reads into the statute

additional requirements not imposed by the Legislature. To the contrary, this Court and others have

previously held that “[n]othing in section 102.003(a)(9) requires that care,

custody, control and possession be exclusive.”

Smith , 2010 WL 3718546 , at *3

(rejecting father’s challenge to standing of aunt who consistently exercised

care, custody, control, and possession along with grandmother who had

previously been named managing conservator of child); [7] see also M.P.B. , 257

S.W.3d at 809 (rejecting father’s challenge to standing of grandmother who had

been consistently and significantly involved in raising child along with

child’s deceased mother over substantial period of time); In re J.J.J. , No. 14-08-01015-CV, 2009 WL 4613715 , at *2 (Tex.

App.—Houston [14th Dist.] Dec. 8, 2009, no pet.) (mem. op.).

In the absence of any requirement

that a person with standing exercise exclusive care, control, or possession, the

question of Katcher’s statutory standing hinges on whether she exercised “actual”

care, control, or possession of the child.

Taking as true

all evidence favorable to Katcher, and indulging every reasonable inference and

resolving any doubts in her favor, we conclude that statutory standard was satisfied.

The trial court was presented

with evidence that, although Katcher’s care, control, and possession of S.J.F.

was not exclusive, she provided the child with a place to sleep, food,

clothing, toys, and medicine. Both women

cared for him most nights. Katcher made

improvements to both women’s homes to make them suitable for a small child. She participated in important decisions

related to S.J.F.’s welfare, including attending medical appointments and

providing for his daycare. Viewed as a

whole, the evidence does not suggest that, prior to the dissolution of the

relationship, Katcher’s pattern of care and possession was intended to be

temporary. Fountain testified that

Katcher possessed and cared for S.J.F. at times during their relationship, and

she even discussed with a lawyer the possibility of Katcher adopting the child. Therefore, the trial court could reasonably

conclude that the women shared parenting responsibilities, including the “actual

care, control, and possession” of S.J.F., until their separation in April 2010.

On this record, the trial court did

not clearly abuse its discretion in concluding that, for purposes of the

statute, Katcher is a person, other than a foster parent, who had actual care,

control, and possession of S.J.F. for at least six months ending not more than

90 days preceding the date of the filing of her petition to establish a

managing conservatorship. See Tex.

Fam. Code Ann. § 102.003(a)(9). [8]

III. Fundamental

parental rights

In

addition to her statutory interpretation argument that Katcher lacks standing,

Fountain’s mandamus petition also referred to interference with her constitutional

right to parent her child as she desires.

The petition stated that “[t]he interest of parents in the ‘care,

custody, and control’ of their children ‘is perhaps the oldest of the

fundamental libery interests’ recognized by the United States Supreme Court in

cases like Troxel v. Granville ,” that

“[t]he natural right existing between parents and their children is one of

constitutional dimensions,” and that a parent’s interests “are a fundamental

right protected by the Due Process Clause of the Fourteenth Amendment to the

United States Constitution.” But apart

from reciting these principles of constitutional law, Fountain’s initial

petition to this Court presented no actual argument or authorities to the

effect that Family Code section 102.003(a)(9) is unconstitutional, either

on its face or as applied to her in these circumstances. Our review of the record does not reflect

that any such argument was presented in the trial court either. [9]

In her motion for en banc reconsideration,

Fountain again references Troxel and

suggests that section 102.003(a)(9) is unconstitutional. That issue is inadequately briefed. See Tex. R. App. P. 52.3(h); Wheeler v. Methodist Hosp. , 95 S.W.3d

628, 646 (Tex. App.—Houston [1st Dist.] 2002, no pet.). However, we observe that the primary problem identified

by the plurality in Troxel was that

the Washington statute at issue permitted “any person” to petition a court for

visitation rights at “any time,” and the statute authorized a court to grant

such visitation rights whenever “visitation may serve the best interest of the

child.” Troxel v. Granville , 530 U.S. 57, 60 , 120 S. Ct. 2054, 2057 (2000) (plurality

op.). The United States Supreme Court held

the statute offended principles of due process, noting that the statute was

“breathtakingly broad” and accorded

no deference to a fit parent’s decision.

Id. at 67 , 120 S. Ct. at 2061 . Those circumstances are not presented here,

when the Legislature has provided a restricted and considerably more tailored

standard for standing than “any person.” [10]

Moreover, although the mere fact of the

filing of this suit constitutes at least some degree of intrusion “into the

private realm of the family,” which ordinarily should not be disturbed by the

state “so long as a parent adequately cares for his or her children ( i.e. , is fit),” id. at 68 , 120 S. Ct. at 2061 , with respect to further proceedings

Fountain still enjoys the protection of a statutory presumption that she, as

the only parent, should be appointed sole managing conservator. Tex.

Fam. Code Ann . § 153.131(a) (West 2008) (applying presumption

“unless the court finds that the appointment of the parent or parents would not

be in the best interest of the child because the appointment would

significantly impair the child’s physical health or emotional development.”). [11] The Texas Supreme Court has characterized language

similar to that contained in this presumption as a “high threshold” that

represents an implementation of Troxel ’s

holding. See In re Derzapf , 219 S.W.3d 327 , 333 - 34 (Tex.

2007) (analyzing grandparent access statute, Tex.

Fam. Code Ann . § 153.433(a)).

Fountain has provided no argument to explain why, despite these distinctions,

we should invalidate the Texas statute on the authority of Troxel , or under what legal standard we should even consider doing

so. See,

e.g. , Troxel , 530 U.S. at 80 , 120

S. Ct. at 2068 (Thomas, J., concurring) (observing that Troxel plurality opinion and separate opinions of Justices Kennedy

and Souter did not articulate appropriate standard of review for evaluating

whether statute impinges on fundamental right of parents to direct upbringing

of their children) ; In re Mays-Hooper , 189 S.W.3d 777, 778 (Tex. 2006).

In the absence of adequate legal briefing and any coercion by the trial

court, we decline to do so. To be clear,

we express no opinion about whether the trial court would have abused its

discretion by granting temporary visitation to Katcher absent Fountain’s

agreement to the terms on a temporary basis.

Conclusion

We hold

that the trial court did not clearly abuse its discretion in denying Fountain’s

motion to dismiss the underlying suit or in entering agreed temporary orders

affording Katcher visitation with S.J.F.

Accordingly, Fountain’s petition for writ of mandamus is denied.

Michael Massengale

Justice

Panel consists of Justices Keyes, Massengale, and

Brown.

[1] See Tex.

Dep’t of Parks & Wildlife v. Miranda ,

133 S.W.3d 217, 228 (Tex. 2004); Hobbs v.

Van Stavern , 249 S.W.3d 1, 3 (Tex. App.—Houston [1st Dist.] 2006, pet.

denied); Smith v. Hawkins , No. 01-09-00060-CV, 2010 WL 3718546 , at *3

(Tex. App.—Houston [1st Dist.] Sept. 23, 2010, no pet. h.) (memo. op.); In re M.J.G. , 248 S.W.3d 753, 758 (Tex.

App.—Fort Worth 2008, no pet.) .

[2] According to Fountain, there was no agreement to add

Katcher as an adoptive parent. Fountain

denies that the two women intended to co-parent or share periods of possession

and access to S.J.F.

[3] In contrast, Fountain maintains that her home was

S.J.F.’s primary residence. She

acknowledges that, prior to the adoption, S.J.F. spent equal amounts of time in

the two women’s homes. But she testified

that she provided S.J.F.’s health insurance and made all decisions concerning

his welfare. She also testified that she

took S.J.F. to and from daycare 90 percent of the time, but that on

occasion Katcher would either take S.J.F. to daycare or care for him at home

while Fountain worked. Although Fountain

conceded that the two women cared for S.J.F. together for a period of time and

that Katcher paid the majority of S.J.F.’s daycare expenses, she characterized

Katcher’s role in S.J.F.’s life as that of a “fun-loving aunt.”

[4]

Fountain

testified that she and Katcher separated on 20 to 25 occasions and declined to

characterize their relationship as serious.

Fountain blamed the problems in their relationship on Katcher’s drug

use. Katcher disputes the allegations of

drug use and recalled only two breakups.

[5]

Fountain

did not immediately challenge the trial court’s denial of her motion to

dismiss. Instead, at the trial court’s

suggestion, the parties participated in mediation. At mediation, the parties entered into

“Mediated Settlement Agreement Temporary Orders,” which granted Katcher

temporary possession of and access to S.J.F. on specified dates and times

during the pendency of the underlying suit.

The agreement recited that “[e]ach signatory to this settlement has

entered into same freely and without duress after having consulted with

professionals of his or her choice.”

Fountain and her counsel each signed the agreement. Fountain initialed each page, and she

separately initialed a sentence set apart on the first page of the agreement,

stating in boldfaced, underlined, and all-capital letters that “ A PARTY TO

THIS AGREEMENT IS ENTITLED TO JUDGMENT ON THIS MEDIATED SETTLEMENT AGREEMENT. ” The agreement also stated that it did not

“prejudice or waive the right of the parties to pursue a mandamus or an appeal

to a higher court.” The trial court

entered temporary orders granting Katcher visitation with S.J.F in accordance

with the terms of the mediated agreement.

Because Fountain agreed

to the entry of temporary orders, we do not consider that order within the

proper scope of her challenge in this original proceeding. A party can hardly complain that a trial

court committed a clear abuse of discretion by implementing a temporary order after

agreeing to the terms and entry of the order.

Despite the trial court’s ruling on the standing question and the

referral to mediation, we have no record to indicate that the trial court would

have awarded temporary access to the child absent Fountain’s consent to the

terms.

[6] See In re K.K.C. , 292 S.W.3d 788, 793 (Tex. App.—Beaumont 2010, orig. proceeding)

(rejecting standing of person who cohabited with parent and participated in supporting

child, yet “had no legal right of control over the child and no authority to

make decisions on behalf of the child”); M.J.G. ,

248 S.W.3d at 758 - 59 (affirming rejection of

grandparents’ standing, even though children lived in their home and they “performed

day-to-day caretaking duties for the children,” because “parents were also

living with the children in the home,” there was no evidence that parents “did

not also care for the children,” or that parents “had abdicated their parental

duties and responsibilities to the grandparents”).

[7] On rehearing, Fountain

contends that the Court’s prior opinion in Smith ,

2010 WL 3718546 , at *3, cannot support the denial of mandamus relief in this

case. Specifically, Fountain asserts

that Smith must be distinguished

because, unlike the parents there, she has not abdicated her parental rights

over S.J.F. Smith involved an aunt who intervened to seek modification of the

conservatorship of her nephew, and her standing was accepted by the trial court

and affirmed on appeal. The aunt shared

a household with the child’s grandmother, who was the child’s managing conservator. 2010 WL 3718546 , at *1. The child’s

biological parents were possessory conservators. Id. The following facts were relevant to the

Court’s standing analysis: (1) the aunt

used her income to provide for the child, including payments for the child’s

heath insurance and the mortgage for the home in which the child resided; (2) the aunt had been involved in the child’s

life consistently for a substantial period of time; (3) the child considered the aunt a mother; (4) the child’s biological mother testified that

the aunt was a wonderful parent; (5) the aunt was involved in the child’s education; and (6) the aunt purchased the child’s clothing. Id. at

*3 - 4. The biological parents’ abdication of their

own responsibilities for the child was not a determinative factor in the

conclusion that the aunt had standing. See id.

Instead, the opinion noted that the person charged with parenting

the child, his grandmother, had shared that responsibility with the aunt. Id. While we agree that the fact pattern

involving Fountain and Katcher is different in important respects, we see no

reason why the result in Smith

requires us to grant relief in favor of Fountain in this original proceeding.

[8] Because Fountain’s objection to standing is her only proper

challenge to the trial court’s temporary order, the entry of that agreed order

will not separately support mandamus relief.

See supra note 5.

[9] In this respect Fountain’s petition is distinguishable

from the Texas Supreme Court’s decision in In

re Mays-Hooper , 189 S.W.3d 777 (Tex. 2006), in which a challenge to Family

Code § 153.432 had been presented to and was

rejected by the trial court . See 189

S.W.3d at 777 .

[10]

Family

Code § 102.003(a) describes the general parameters of who has general standing

to file a suit affecting the parent-child relationship, and provides that an

original suit “may be filed at any time by:

(1) a parent of the child;

(2) the child through a representative

authorized by the court;

(3) a custodian or person having the right

of visitation with or access to the child appointed by an order of a court of

another state or country;

(4) a guardian of the person or of the

estate of the child;

(5) a governmental entity;

(6) an authorized agency;

(7) a licensed child placing agency;

(8) a man alleging himself to be the father

of a child filing in accordance with Chapter 160, subject to the limitations of

that chapter, but not otherwise;

(9) a person, other than a foster parent,

who has had actual care, control, and possession of the child for at least six

months ending not more than 90 days preceding the date of the filing of the

petition;

(10) a person designated as the managing

conservator in a revoked or unrevoked affidavit of relinquishment under

Chapter 161 or to whom consent to adoption has been given in writing under

Chapter 162;

(11) a person with whom the child and the

child’s guardian, managing conservator, or parent have resided for at least six

months ending not more than 90 days preceding the date of the filing of the

petition if the child’s guardian, managing conservator, or parent is deceased

at the time of the filing of the petition;

(12) a person who is the foster parent of a

child placed by the Department of Protective and Regulatory Services in the person’s

home for at least 12 months ending not more than 90 days preceding the

date of the filing of the petition;

(13) a person who is a relative of the

child within the third degree by consanguinity, as determined by Chapter 573,

Government Code, if the child’s parents are deceased at the time of the filing

of the petition; or

(14) a person who has been named as a

prospective adoptive parent of a child by a pregnant woman or the parent of the

child, in a verified written statement to confer standing executed under

Section 102.0035, regardless of whether the child has been born.”

Tex. Fam. Code Ann . § 102.003(a) (West 2008).

[11] We note in particular that the Troxel plurality specifically stated that the problem in that case

was not that the Washington court intervened, but that when it did so it gave

no special weight to the legal parents’ determination of the children’s best

interests. Troxel v. Granville , 530 U.S. 57, 69 , 120 S. Ct. 2054, 2062 (2000)

(plurality op.).